| Section 301 has been a tool for the United States to open other markets and safeguard its interests since it was created.Although the legality of it has always been questioned,the Panel has already ruled on United States-Sections 301-310 of the Trade Act of 1974 that it does not violate WTO rules.Therefore,if countries that have been subjected to 301 tariff measures by the United States still protect their interests by questioning the legality of it using the international law,they will not success.Countries that have been subjected to 301 tariff measures by the United States usually can only bring a lawsuit to the WTO on the specific contents of them.However,influenced by many factors,DSB is often unable to rule on disputes within the stipulated time.Moreover,the Panel’s decision is likely to be detrimental to countries affected by 301 tariff measures,because the Panel has already ruled that it does not violate WTO rules in previous case,and it is difficult for the Panel to conclude that301 tariff measures of the United States against a country are illegal.In addition,the appointment and renewal of the judges of the Appellate Body are still blocked by the United States.As of the time this article was finalized,there were only three judges left,thus bringing the Appellate Body to the brink of paralysis.Therefore,in order to better safeguard the interests of foreign enterprises adversely affected by 301 tariff measures,they may consider mobilizing importers of their export products,their downstream customers and U.S.subsidiaries,and other parties adversely affected by301 tariff measures to file a lawsuit against them in U.S.courts while the government of their country files a lawsuit against the U.S.301 tariff measures in the WTO.Because 301 tariff measures are made in accordance with U.S.domestic law,as long as it meets the procedural requirements of litigation in U.S.courts,the parties adversely affected by them can file a lawsuit in U.S.courts to request cancellation or partial cancellation of 301 investigation ruling and tariff measures.In order to better file a lawsuit against 301 tariff measures in U.S.courts,it is necessary for us to study the procedural law of litigation on them in U.S.courts.Based on the analysis of 301 related cases,this paper points out when foreign enterprises adversely affected by 301 tariff measures mobilize importers of their export products,their downstream customers and U.S.subsidiaries,and other parties adversely affected by these measures to file lawsuit against these measures in U.S.courts,they should pay attention to the relevant issues of procedures of litigation on these measures such as the harsh conditions for exercising jurisdiction over 301 tariff measures litigation,the complexity of the judging process of the subject status of litigation,and the non-political review of cause of action is strict.And put forward corresponding suggestions for Chinese enterprises to deal with U.S.301 tariff measures.The first chapter of the article introduces the procedural law issues that U.S.courts are mainly concerned about when judging the only two 301-related cases.So far only two 301-related cases have been judged by U.S.court,one is Almond Bros.Lumber Co.et al.v.U.S.,and the other is Gilda Industries,Inc.v.U.S..When judging these two cases,the court first focused on the issue of jurisdiction.Since all civil action arising from U.S.import trade are exclusively under the jurisdiction of the International Trade Court,lawsuits against these measures are under the jurisdiction of the International Trade Court in accordance with 28 U.S.C.§1581(I)(2)and(4).According to the case of Almond Bros.Lumber Co.et al.v.U.S.,the premise for the court to exercise jurisdiction in accordance with the above-mentioned provisions is that civil action must arise from U.S.laws that specify specific contents.According to the case of Gilda Industries,Inc.v.U.S.,the jurisdiction of the court under the3 above provisions is restricted.Only when there is no jurisdiction under 28 U.S.C.§1581(a)-(h),or the jurisdiction under 28 U.S.C.§1581(a)-(h)is not sufficient,can the court exercise jurisdiction in accordance with the above provisions.In summary,the court can exercise jurisdiction over the two cases only if specific requirements are met.Secondly,the court is concerned about whether the subject of the lawsuit is qualified and whether the class action can be filed.In the case of Gilda Industries,Inc.v.U.S.,the court applied the criterion of " zone of interest" to examine the interests protected and regulated by the terms of the case,the legislative purpose of the terms of the case and the interests of the plaintiff,and finally decided that the plaintiff’s subject was qualified.In the meantime,the court found that the case could not be filed as a class action on the basis of analyzing many preconditions and additional conditions that need to be met for filing a class action.Through analysis,it can be seen that the court’s judgment on whether the plaintiff’s subject is qualified and whether it can bring a class action needs to be based on the analysis and conclusion of many related issues.Finally,the court was concerned about the plaintiff’s reasons for filing the lawsuit.The plaintiff cannot bring a lawsuit on political questions,otherwise the court has no right to hear the case.On the basis of the analysis of the relevant criteria for judging whether it is a political question,the court finds that the plaintiff’s reason for bringing a lawsuit in this case is a political question,so the court has no right to conduct judicial review of it.Through the analysis,we can see that the reason for litigation against 301 tariff measures is limited,and it cannot be a political question,otherwise the court has no right to conduct judicial review of 301 tariff measures.The second chapter of the article mainly introduces that the lawsuit against 301 tariff measures is exclusively under the jurisdiction of the international trade court in accordance with 28 U.S.C.§1581(I)(2)and(4).In the meantime,through the analysis of relevant theories and practical cases,it is shown that the international trade court needs to meet certain conditions when exercising its jurisdiction in accordance with 28 U.S.C.§1581(I)(2)and(4).That is to say,the civil action must arise from U.S.laws that specify specific contents,and there is no jurisdiction under 284U.S.C.§ 1581(a)-(h),or the jurisdiction under 28 U.S.C.§ 1581(a)-(h)is not sufficient.Finally,it is explained that the court has exclusive jurisdiction over litigation on these measures according to 28 U.S.C.§1581(I)(2)and(4),so the court needs to meet the above stringent conditions when exercising jurisdiction over litigation on these measures.The third chapter of the article mainly introduces the criteria for judging whether the plaintiff’s subject is qualified-"the zone of interests" and the criteria for judging whether the plaintiff can bring a class action-Article 23 of the《Rules of Procedure of the U.S.International Trade Court》.And through the analysis of relevant theories and cases in practice,it shows that before the court can judge whether the plaintiff is qualified and whether it can bring a class action,it needs to analyze many relevant factors.Finally,it introduces that when the court judge whether the plaintiff is qualified and whether it can bring a class action,it will use the above criteria,and after analyzing many related factors,it can reach a conclusion.The fourth chapter of the article first introduces that due to the influence of the separation of powers,the plaintiff’s reason for bringing a lawsuit cannot be a political question,and introduces the criteria for judging the political issue in detail.Then,through the analysis of relevant cases in practice,it shows how the judgment standard of political questions is used by the court.That is to say,what factors are mainly considered by the court in judging whether a cause of action is a political question.Finally,through the use of judgment criteria on political questions,we can know that the plaintiff’s reasons for filing a lawsuit on 301 tariff measures are easy to be seemed as political questions.Therefore,in order to avoid judicial review of political questions by the court,it is necessary for it to conduct a strict review of the cause of action of litigation on 301 tariff measures.The fifth chapter of the article puts forward suggestions for Chinese enterprises to deal with 301 tariff measures of the United States.On the basis of understanding of the procedure of litigation on 301 tariff measures,while the Chinese government is suing the WTO for 301 tariff measures of the United States,Chinese enterprises adversely affected by these measures may consider mobilizing importers of theirexport products,their downstream enterprises,U.S.subsidiaries and other parties adversely affected by these measures to bring a lawsuit against these measures in the U.S.International Trade Court on the reason that it is not a political question,requesting the illegal or partially illegal 301 investigation ruling and tariff measures to be revoked or partially revoked by the court.In addition,Chinese enterprises also can mobilize those parties adversely affected by these measures to apply to exclude specific products from the tax list. |
